The Court of Criminal Appeal quashed the murder convictions of James Hourigan and Keith O’Donovan and ordered a retrial, finding a real danger that remarks by the trial judge may have influenced the jury.
The court said the judge’s description of Mary McCarthy, the deceased man’s mother, as a “victim” had, in the circumstances, given her evidence “the seal of approval”. Her testimony was crucial to both convictions and conflicted in important respects with the accused men’s accounts, other evidence and her earlier statement to gardaí. The appeal court said the judge did not tell jurors that his comment had no bearing on her credibility.
The convictions followed a 10-day jury trial in the Central Criminal Court. Hourigan and O’Donovan had each been charged with murder and sentenced to life imprisonment. O’Donovan admitted stabbing Noel McCarthy but relied on provocation. The prosecution case against Hourigan was that he was part of a joint venture to cause death or serious injury; the judgment said he did not take part in the stabbing.
The court rejected Hourigan’s argument that the murder charge should have been withdrawn from the jury because of inconsistencies in McCarthy’s evidence. It held that assessing her reliability was for the jury, which had heard cross-examination and received her earlier statement. It also rejected his challenge to the trial judge’s explanation of joint venture and verdict options. The court called the judge’s phrase that Hourigan would “walk free” if acquitted unfortunate and unnecessary, but not, by itself, sufficient to quash the verdict.
Both appellants challenged the judge’s remarks after O’Donovan’s counsel addressed the jury. The court said those remarks were not as objectionable as comments considered in an earlier case, but concluded that, given McCarthy’s importance to the prosecution case, they created a real danger of influencing the verdicts and made the trial unfair and unsatisfactory.
The court rejected O’Donovan’s separate appeal over a newspaper photograph published during the trial. Although it said the image gave the general impression that he was in the custody of a prison officer and was to some extent prejudicial, the trial judge had directed jurors to decide the case only on the evidence before them. The appeal court held that refusing to discharge the jury was a proper exercise of discretion.
Treating the applications for leave as appeals, the court quashed both convictions and ordered a retrial under section 5(1)(b) of the Courts of Justice Act 1928. The judgment does not state the date or outcome of any retrial.